Practice Relating to Rule 107. Spies

Hague Regulations (1899)
Article 29 of the 1899 Hague Regulations provides:
An individual can only be considered a spy if, acting clandestinely, or on false pretences, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies: soldiers or civilians, carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory. 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 29.
Hague Regulations (1907)
Article 29 of the 1907 Hague Regulations provides:
A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.
Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy’s army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory. 
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 29.
Additional Protocol I
Article 46(2) of the 1977 Additional Protocol I provides:
A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 46(2). Article 46 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.39, 25 May 1977, p. 111.
Lieber Code
Article 88 of the 1863 Lieber Code states: “A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy.” 
Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington D.C., 24 April 1863, Article 88.
Brussels Declaration
Article 19 of the 1874 Brussels Declaration provides:
A person can only be considered a spy when acting clandestinely or on false pretenses he obtains or endeavours to obtain information in the districts occupied by the enemy, with the intention of communicating it to the hostile party. 
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 19.
Brussels Declaration
Article 22 of the 1874 Brussels Declaration provides: “Soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies.” 
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 22.
Oxford Manual
Article 24 of the 1880 Oxford Manual provides: “Individuals may not be regarded as spies, who, belonging to the armed force of either belligerent, have penetrated, without disguise, into the zone of operations of the enemy.” 
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 24.
Argentina
Argentina’s Law of War Manual (1989) defines spies with reference to Article 29 of the 1907 Hague Regulations and considers that this definition implies that members of the armed forces who wear their uniform while gathering information are not considered to be spies. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 1.09(1); see also Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.009(1).
Australia
Australia’s Commanders’ Guide (1994) defines spies as “combatants who conduct covert espionage operations in enemy occupied territory, while not in uniform”. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 707; see also § 913.
Australia
Australia’s Defence Force Manual (1994) defines espionage as “the clandestine collection of information behind enemy lines or in the area of operations with the intention of communicating that information to a hostile party to the conflict”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 717.
Australia
Australia’s LOAC Manual (2006) defines espionage as “the clandestine collection of information behind enemy lines or in the area of operations with the intention of communicating that information to a hostile party to the conflict”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 7.18.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Belgium
Belgium’s Law of War Manual (1983) defines a spy as:
an individual who gathers or attempts to gather, clandestinely or on false pretences, information in the zone of operations of a belligerent with the intention of communicating it to the adverse party. The “zone of operations” comprises zones where no land operations are taking place but which may be hit by aerial bombardment (including bombardment by long-range missiles). This interpretation is very wide. Neutral territory on which a spy may operate cannot, however, be considered as a “zone of operations”. 
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 21.
Cameroon
Cameroon’s Instructor’s Manual (1992) states:
Spying is to be distinguished from military intelligence. The latter is legal while the former is vigorously condemned in all national and international jurisdictions. Spying is an unlawful search for information. 
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, pp. 36 and 60.
Cameroon
Cameroon’s Instructor’s Manual (2006), under the heading “Non-Combatants”, states:
Spying is different from military intelligence and is rigorously condemned by all national and international jurisdictions. Spies are persons who gather information of military interest in the enemy zone for the benefit of a belligerent on false or deceitful pretences or in disguise; whereas military intelligence is a lawful activity. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 154, § 443; see also p. 21, § 112, p. 41, § 41, p. 67, § 302, p. 112, § 383, p. 180, § 491.A and p. 211, § 512.
The manual also states:
A combatant who gathers or attempts to gather information of military interest in the operational zone of a belligerent in a deliberately clandestine way or under false pretences, must not be considered to be spying if, in so doing, he wears the uniform of his armed forces. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 211, § 512.
Canada
Canada’s LOAC Manual (1999) defines espionage as “the collection of information clandestinely behind enemy lines or in the zone of operations while wearing civilian clothing or otherwise disguised or concealed. Spies are those who engage in espionage.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 6-3, § 23.
The manual further states:
Members of the armed forces of a party to the conflict who gather or attempt to gather information while wearing the uniform of their armed forces will not be considered as engaging in espionage. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 3-4, § 33.
[emphasis in original]
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Combatant Status”:
1. Espionage means to gather or attempt to gather information of military value through an act of false pretence or deliberately in a clandestine manner. Generally speaking, persons engaging in espionage may be attacked and if captured while doing so shall NOT have the right to the status of prisoner of war.
2. Members of the armed forces of a party to the conflict who gather or attempt to gather information while wearing the uniform of their armed forces will not be considered as engaging in espionage.
3. Members of the armed forces engaging in espionage while not in uniform may be treated as spies and lose their entitlement to PW [prisoner-of-war] status if they are captured before rejoining the armed forces to which they belong.
4. Spies who are not in uniform are not lawful combatants. If they engage in hostilities, they may be punished for doing so but only after a fair trial affording all judicial guarantees. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 320.
[emphasis in original]
In its chapter on land warfare, the manual further states:
Espionage is the collection of information clandestinely behind enemy lines or in the zone of operations while wearing civilian clothing or otherwise disguised or concealed. Spies are those who engage in espionage. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 611.1.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 3 (Instruction for non-commissioned officers studying for the level 1 and 2 certificates and for future officers of the criminal police): “Intelligence must be obtained in uniform or without attempting to conceal the status of combatant. If intelligence is sought in areas controlled by the enemy under false pretence or in a deliberately clandestine way, this will be considered espionage.” 
Central African Republic, Le Droit de la Guerre, Fascicule No. 3: Formation pour l’obtention du Brevet d’Armes No. 1, du Brevet d’Armes No. 2 et le stage d’Officier de Police Judiciaire (OPJ), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter II, Section II, § 2.1.
Chad
Chad’s Instructor’s Manual (2006) states that “spies are people who act clandestinely or under false pretences to gather information in a territory controlled by an enemy party, their aim being to pass this information on to the enemy”. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 55.
The manual further states: “Unlike military intelligence, which is legitimate, espionage is vigorously criticized by all national and international jurisdictions.” 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 42.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
I.6. Spies
The law clearly defines spies: they are persons who, in a clandestine or disguised manner, i.e. without wearing the uniform of their armed forces, collect or try to collect information in the territory of the enemy in order to transmit it to the adversary. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 30; see also Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 25.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
I.4.3. Spies
Espionage consists in collecting or trying to collect information on military strength by an act of false representation or an act deliberately of a clandestine nature. …
Members of the armed forces of a Party to the conflict who collect or try to collect the information while wearing the uniform of their armed forces are not considered as participants in activities of espionage. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 24.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states:
[S]oldiers in combat must consider the following to be lawful combatants: members of the armed forces and organized units, franc-tireurs detached from their regular units, commando detachments and isolated saboteurs and members of voluntary militias, self-defence groups and organized resistance movements.
In order for these categories to be considered lawful combatants, their units, organizations and groups must have a designated commander and their members must display a distinctive sign, especially on their clothing, carry their arms openly and respect the laws and customs of war.
Anyone not meeting the above requirements may be considered a spy. 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 30(1).
Ecuador
Ecuador’s Naval Manual (1989) defines a spy as:
someone who, while in territory under enemy control or the zone of operations of a belligerent force, seeks to obtain information while operating under a false claim of non-combatant or friendly forces status with the intention of passing that information to an opposing belligerent. Members of the armed forces who penetrate enemy-held territory in civilian attire or enemy uniform to collect intelligence are spies. Conversely, personnel conducting reconnaissance missions behind enemy lines while properly uniformed are not spies. 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 12.8.
France
France’s LOAC Manual (2001) defines spies with reference to Article 29 of the 1907 Hague Regulations. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 64.
The manual further provides:
Commando
Trained, equipped and organized for carrying out special operations in the enemy zone, commandos, whatever their mission and their weapons, must respect the law of armed conflicts. In case of capture, they are protected by prisoner-of-war status if they comply with the definition of a combatant specified by Article 4 of Geneva Convention II of 12 August 1949 relative to the Treatment of Prisoners of War. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 40.
Under the heading “Intelligence activity”, the manual restates, inter alia, Article 46(2) of the 1977 Additional Protocol I and further provides:
The gathering of information, compatible with the law of armed conflicts, is based on the distinction which is to be made between permitted and prohibited methods. Gathering of information of military value in zones dominated by the enemy is lawful if it is carried out in uniform and without concealing the status as combatant. Gathering of information of military value in zones dominated by the enemy is considered as espionage if it is carried out under false pretexts or by acting in a deliberately clandestine manner. A combatant captured while engaging in espionage (i.e. who conceals his status as combatant) loses his right to prisoner-of-war status and can be convicted by the tribunals of the State on whose territory he is captured. The captured combatant, if he carried out a lawful intelligence mission, is entitled to prisoner-of-war status and to the protections linked to it. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, pp. 107–108.
Germany
Germany’s Military Manual (1992) defines spies as “persons who clandestinely or on false pretences, i.e. not wearing the uniform of their armed forces, gather information in the territory controlled by the adversary”. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten KonfliktenHandbuch, August 1992, § 321.
Greece
The Hellenic Navy’s International Law Manual (1995) provides: “A person acting undercover in the war zone or under false pretences with a view to obtain information for imparting it to the enemy is considered a spy.” 
Greece, International Law Manual, Hellenic Navy General Staff, Directorate A2, Division IV, 1995, Chapter 5, § 6.
Kenya
Kenya’s LOAC Manual (1997) defines spies as:
persons who, acting clandestinely or on false pretences, gather information in the territory of a belligerent party with the intent of communicating it to the enemy … If members of the armed forces gather intelligence in occupied territory, they may not be treated as spies provided they are in uniform. 
Kenya, Law of Armed Conflict, Military Basic Course (ORS), 4 Précis, The School of Military Police, 1997, Précis No. 2, p. 9.
Netherlands
The Military Manual (1993) of the Netherlands defines spies with reference to Article 29 of the 1907 Hague Regulations and states that this definition implies that combatants gathering information in uniform are not considered as spies. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. III-5.
Netherlands
The Military Manual (2005) of the Netherlands states:
A person who obtains, or tries to obtain, intelligence in a combatant’s field of operations, secretly or under false pretences, with a view to passing it to the opposite side, is treated as a spy. It follows that an undisguised member of the military, who engages in intelligence gathering behind enemy lines, is not a spy (e.g. reconnaissance units, AP II [1977 Additional Protocol II] Article 46). The same is true for undisguised military personnel in the area under the other side’s control. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0320.
New Zealand
New Zealand’s Military Manual (1992) defines spies as “people, wearing civilian clothing or otherwise disguised, who collect information clandestinely behind enemy lines or in the zone of operations with the intention of communicating that information to a hostile Party”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 506(2).
Nigeria
Nigeria’s Manual on the Laws of War states:
Soldiers or civilians acting clandestinely or on false pretences to obtain information about a belligerent with the intention to communicate it to his enemy are engaged in espionage … Soldiers wearing their uniform when penetrating the enemy zone of operations are not spies and if captured, should be treated as prisoners of war. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 31.
Pakistan
The Manual of Pakistan Military Law (1987) states:
2. Spying. – Section 3 [of the Official Secrets Act] narrates offences of spying. If any person for any purpose prejudicial to the safety or interests of the State: –
a. approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or
b. makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be directly or indirectly, useful to an enemy; or
c. obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly useful to an enemy;
he shall be guilty of an offence under Section 3. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 165.
Peru
Peru’s IHL Manual (2004) states that, in the context of air warfare:
An individual found on board a belligerent or neutral aircraft can be considered a spy only when, during a flight acting clandestinely or on false pretences, he obtains or endeavours to obtain information within the belligerent jurisdiction or in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 173.a.
Peru
Peru’s IHL and Human Rights Manual (2010) states:
An individual found on board a belligerent or neutral aircraft can be considered a spy only when, during a flight acting clandestinely or on false pretences, he obtains or endeavours to obtain information within the belligerent jurisdiction or in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 164(a), p. 344.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
spies means persons who, acting clandestinely, or on false pretences, obtain, or seek to obtain information within the territory controlled by a party to the conflict to be further transmitted to the adverse party.
Members of the armed forces engaged in gathering information in the territory controlled by the adverse party shall not be considered as spies and shall have the right to the prisoner of war status provided they were wearing the uniform of their armed forces when captured by the enemy. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 1.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states: “A spy is any person who, acting clandestinely or under false pretences, gathers information in the territory of one of the belligerents with the intention of communicating it directly to the opposing side.” 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 28.
South Africa
South Africa’s LOAC Manual (1996) states that espionage “entails acting clandestinely in order to obtain information for transmission back to one’s own side”. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 34(d).
South Africa
South Africa’s Revised Civic Education Manual (2004) states: “Espionage entails acting clandestinely in order to obtain information for transmission back to one’s own side.” 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 56(d).
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Spies ([1977] Additional Protocol I Article 46)
- Espionage in the Territory of the Capturing Party by a Resident of that Territory
- Sub-article 2 of … article [46 of Additional Protocol I] … determines that a member of the armed forces of a Party to a conflict who gathers information on behalf of that Party and in the territory of an adverse Party, shall not be considered as engaging in espionage if, while so acting, he is in the uniform of his armed forces (i.e. overt collection) and not concealing his combatant status.
- Sub-article 3 of article 46 determines that a member of the armed forces of a Party to a conflict who is a resident of a territory occupied by an adverse party and who, on behalf of the Party on which he depends, gathers information of military value within that territory, shall not be considered as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner.
- Sub-article 46.3 further specifies that such a resident shall not lose his right to the status of POW [prisoner of war] and may not be treated as a spy unless he is captured while engaging in espionage.
- Espionage in the Territory of the Capturing Party by a Non-Resident of that Territory. Article 46.4 determines that a member of the armed forces of a Party to a conflict who is not a resident of the territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of POW and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, p. 38.
[emphasis in original]
Spain
Spain’s LOAC Manual (1996) states:
A member of the armed forces who gathers information is not considered to be engaged in espionage if that person is wearing regular uniform or is a resident in an occupied territory and is collecting information in that territory on behalf of the occupied power. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 1.4.a.
Spain
Spain’s LOAC Manual (2007) states:
The law of war refers only to military spies, that is, members of the armed forces who engage in espionage.
The gathering of information by a member of the armed forces of a party to the conflict on behalf of that party is not considered to be engaging in espionage if, while so acting:
- he is in the uniform of his armed forces;
- he is a resident of an occupied territory and gathers information on behalf of the occupied power within that territory. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 1.4.a.
The manual further states:
Espionage activities are considered to be those carried out in areas controlled by the adverse party using false pretences or acting in a deliberately clandestine manner. The law of armed conflict does not prohibit such activities, but penalizes them by depriving members of the armed forces captured engaging in espionage of prisoner-of-war status. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.3.b.(5).
Switzerland
Switzerland’s Basic Military Manual (1987) defines a spy as “an individual who, acting clandestinely or on false pretences, gathers or attempts to gather information in the zone of operation of a belligerent with the intention of communicating it to the adverse party”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 42.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
220 Gathering information and conducting reconnaissance are permissible at any time. If, when gathering information while in uniform, combatants fall into the hands of the enemy, they must be treated as prisoners of war.
221 Gathering information in a clandestine manner or under a false pretext (e.g. in civilian attire or enemy uniform) is considered espionage. Spies are subject to the criminal law of the State that arrests them (in Switzerland: the Military Criminal Code) and face severe penalties after their arrest. They are not entitled to prisoner-of-war status.
222 Acts of sabotage (i.e. harmful acts committed behind enemy lines) are permitted, as long as they are carried out by combatants in uniform and are aimed exclusively at military objectives. If captured, combatants who have committed acts of sabotage are entitled to prisoner-of-war status. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 220–222.
Ukraine
Ukraine’s IHL Manual (2004) states:
Spies are persons who, acting secretly or by deceit, gather (or attempt to gather) information in the territory controlled by a party to the armed conflict with the purpose of further transmission of information to the adverse party. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.2.25.1.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Pamphlet (1981) defines spies as “persons who, acting clandestinely or on false pretences, gather information in the territory of a belligerent with intent to communicate it to the enemy”. 
United Kingdom, The Law of Armed Conflict, D/DAT/13/35/66, Army Code 71130 (Revised 1981), Ministry of Defence, prepared under the Direction of The Chief of the General Staff, 1981, Section 3, p. 9, § 6.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) defines a spy as a “person who, acting clandestinely or on false pretences obtains or endeavours to obtain information in territory controlled by an adverse party, with the intention of communicating it to the opposing party”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 4.9.1.
United States of America
The US Naval Handbook (1995) defines a spy as:
someone who, while in territory under enemy control or the zone of operations of a belligerent force, seeks to obtain information while operating under a false claim of noncombatant or friendly forces status with the intention of passing that information to an opposing belligerent. Members of the armed forces who penetrate enemy-held territory in civilian attire or enemy uniform to collect intelligence are spies. Conversely, personnel conducting reconnaissance missions behind enemy lines while properly uniformed are not spies. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 12.8.
United States of America
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
SPYING.
a. Text. “Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.”
b. Elements.
(1) The accused collected or attempted to collect certain information by clandestine means or while acting under false pretenses;
(2) The accused intended or had reason to believe the information collected would be used to injure the United States or to provide an advantage to a foreign power;
(3) The accused intended to convey such information to an enemy of the United States or one of the co-belligerents of the enemy; and
(4) The conduct took place in the context of and was associated with armed conflict.
c. Maximum punishment. Death. 
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(27), p. IV-20.
United States of America
The US Naval Handbook (2007) states:
A spy is someone who, while in territory under enemy control or the zone of operations of a belligerent force, seeks to obtain information while operating under a false claim of noncombatant or friendly forces status with the intention of passing that information to an opposing belligerent. Members of the armed forces who penetrate enemy-held territory in civilian attire or enemy uniform to collect intelligence are spies. Conversely, personnel conducting reconnaissance missions behind enemy lines while properly uniformed are not spies. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 12.8.
United States of America
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
SPYING.
a. Text. “Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.”
b. Elements.
(1) The accused collected or attempted to collect certain information by clandestine means or while acting under false pretenses;
(2) The accused intended or had reason to believe the information collected would be used to injure the United States or to provide an advantage to a foreign power;
(3) The accused intended to convey such information to an enemy of the United States or one of the co-belligerents of the enemy;
(4) The conduct was in violation of the law of war; and
(5) The conduct took place in the context of and was associated with hostilities.
c. Comment. For purposes of offenses (13) [intentionally causing serious bodily injury], (15) [murder in violation of the law of war], (16) [destruction of property in violation of the law of war], and (27) [spying] in Part IV of this Manual (corresponding to offenses enumerated in paragraphs (13), (15), (16), and (27) of § 950t of title 10, United States Code), an accused may be convicted in a military commission for these offenses if the commission finds that the accused employed a means (e.g., poison gas) or method (e.g., perfidy) prohibited by the law of war; intentionally attacked a “protected person” or “protected property” under the law of war; or engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.
d. Maximum punishment. Death. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(27), pp. IV-21 and IV-22.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides a definition of spies similar to that contained in Article 29 of the 1907 Hague Regulations. 
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 109.
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003), as amended in 2006, states:
(1) Whoever discloses, delivers or renders secret data to a foreign country, foreign organization or a person in the service thereof,
shall be punished by imprisonment for a term of between one and ten years.
(4) Whoever obtains secret data with an aim of disclosing or delivering it to a foreign country, foreign organization or a person in the service thereof,
shall be punished by imprisonment for a term of between one and ten years. 
Bosnia and Herzegovina, Criminal Code, 2003, as amended on 13 June 2006, Article 163(1) and (4).
Central African Republic
The Central African Republic’s Penal Code (2010) states:
Any foreigner who has committed one of the acts mentioned in article 266 2, 3, 4 and 5 and article 267 1, 2 and 3 shall be guilty of espionage and sentenced to death.
Incitement to commit or the offer to commit one of the offences mentioned in articles 266 and 267 of this code will be punished in the same way as the offence itself. 
Central African Republic, Penal Code, 2010, Article 270.
Article 266 of the Code states:
Shall be guilty of treason and sentenced to death:
2. Any Central African [national] who is in contact with a foreign power with the aim of seeking it to engage in hostilities against the Central African State or that provides it with the means to do so, by aiding foreign forces to enter the Central African territory, by undermining the confidence of the land, sea and air armed forces, or in any other way;
3. Any Central African [national] who gives over to a foreign power Central African troops, territories, cities, fortresses, construction, posts, warehouses, arsenals, materials, vessels, buildings or aerial navigation devices belonging to the Central African State;
4. Any Central African [national] who, in times of war, provokes members of the armed forces or of the navy to transfer to the service of a foreign power, facilitates the means to do so or carries-out enrollments for a [foreign] power at war with the Central African State;
5. Any Central African [national] who, in times of war, exchanges intelligence with a foreign power or its agents in order to favour the undertakings of this power against the Central African State. 
Central African Republic, Penal Code, 2010, Article 266 (2–5).
Article 267 of the Code states:
Shall be guilty of treason and sentenced to death:
1. Any Central African [national] who gives over to a foreign power or to its agents, under any format and in any way, a secret of national security, or assures in any way the possession of this type of secret with a view to handing it over to a foreign power or to its agents;
2. Any Central African [national] who voluntarily destroys or damages a vessel, an aerial navigation device, a material or supply, [and] a construction or installation likely to be employed for national security, or who deliberately causes a defect, either before or after their completion, of a nature to prevent functioning or to provoke an accident;
3. Any Central African national that deliberately engages in an initiative to demoralize the army or the nation with the aim of causing harm to national security. 
Central African Republic, Penal Code, 2010, Article 267 (1–3).
Chile
Chile’s Code of Military Justice (1925) defines a spy as:
1) anyone who surreptitiously or with the aid of a disguise or a false name, or by concealing his status or nationality, introduces himself in time of war and without justified aim in a war zone, a military post or among troops in the field; 2) anyone who conveys communications, messages or sealed documents from the enemy without being compelled to do so, or who being so compelled does not hand them over to the national authorities; 3) anyone who engages in reconnaissance, draws up plans or makes sketches of the terrain; 4) anyone who conceals, causes to be concealed or places in a safe place a person whom he knows to be an enemy spy, agent or member of the military.
The Code also provides that “enemy soldiers who, wearing their uniforms, openly enter the national territory for, inter alia, the purpose of engaging in reconnaissance of the terrain or observing troop movements” shall not be considered as spies but shall be subject to the rules of war as laid down by international law. 
Chile, Code of Military Justice, 1925, Articles 252–253.
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states:
Article 146
(2) Whoever collects data, objects, documents or information which are a State secret with an aim of making them accessible to a foreign State, an organization or a person working for them shall be punished by imprisonment for one to three years.
(5) Whoever commits the criminal offence referred to in paragraph 2 of this Article in time of war or armed conflict, or if the disclosed State secret is related to the defence or security of the Republic of Croatia, shall be punished by imprisonment for three to ten years. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 146(2) and (5).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 127
Without prejudice to the provisions of articles 181 to 186 of book II of the ordinary Penal Code, treason and espionage, in times of war, are punished according to the provisions of the present Code.
Article 128
In times of war, every Congolese national who is guilty of treason is punished by death.
Treason is to be understood as:
1. The act of delivering to a foreign power, a foreign or foreign-controlled organization, or to their agents, either troops belonging to the Congolese Armed Forces or the national territory as a whole or in parts;
2. The act of delivering to a foreign power, a foreign or foreign-controlled company or organization, or to their agents, material, constructions, equipment, installations, appliances or other material devoted to national defence;
3. The act of entertaining contacts with a foreign power, a foreign or foreign-controlled company or organization, or to their agents, with a view to provoking hostilities or acts of aggression against the Republic;
4. The act of delivering to a foreign power, a foreign or foreign-controlled company or organization, or to their agents, the means to undertake hostilities or to accomplish acts of aggression against the Republic;
5. The act of delivering or of making accessible to a foreign power, a foreign or foreign-controlled company or organization, or to their agents, information, procedures, objects, documents, computerized data or files, whose exploitation, divulgation or reunion is of a nature to endanger the fundamental interests of the Nation.
Article 129
Guilty of espionage and punished by death is every foreigner who is the perpetrator of the acts listed in the article above. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 127–129.
El Salvador
El Salvador’s Penal Code (1997), as amended to 2008, states:
Treason
Art. 352.- Any Salvadoran or foreigner, exercising a function, position, or public or technical office, who takes up arms against El Salvador under an enemy flag, joins or provides any kind of political, military, technical or economic assistance, propaganda or any other act or economic activity that favours or facilitates the military capacity of a State at war with El Salvador shall be sanctioned with fifteen to twenty five years of prison.
The above-mentioned provision is applicable to foreigners, present in the country, exercising a function, position, or public or technical office for an international organization, having carried out any of the mentioned acts.
Intelligence with a Foreign State
Art. 353.- Any Salvadoran or foreigner in the circumstances mentioned in the previous article, who is in contact with, [provides] intelligence to, or engages in any other act with a foreign State in order for a war to be declared or for the carrying out of hostile acts against the Salvadoran State, will be punished with fifteen to twenty five years of prison if these acts resulted in war; with ten to fifteen years if they only resulted in hostile acts, and five to ten years if they did not result in war or hostile acts.
Provocation of War, Retaliation or International Enmity
Art. 354.- Anyone who engages in Salvador territory in the recruitment [of persons], or in any other hostile act against El Salvador in a manner that increases the danger of war for El Salvador, will be punished with five to ten years of prison, and with ten to fifteen years if the war occurs.
Disclosure of State Secrets
Art. 355.- Anyone who discloses political or military secrets concerning State security or facilitate their disclosure will be punished with one to six years of prison.
The sanction will increase by a third of the indicated maximum if the responsible [person] had knowledge of the secrets due to their position, or if [these were] obtained through the use of violence or fraud.
Espionage
Art. 356.- Any Salvadoran, any [person] having been [a national of El Salvador] and no longer one, and foreigners owing obedience to the Republic of El Salvador due to their function, position or public or technical office, who place themselves at the service of a foreign nation or of its agents in time of peace in order to provide information on political, diplomatic or military secrets of the State, will be sanctioned with eight to twenty years of prison.
If the Salvadoran was a public official or a public servant the sanction can increase by up to a third of the maximum amount indicated.
If committed by a foreigner not in the conditions mentioned above, the sanction will be between four to ten years of prison.
Sabotage
Art. 357.- Anyone who destroys or renders unusable in whole or in part, even if temporarily, systems of attack, defence, communication, transportation, procurement, deposit, other military works or that are at the service of the armed forces or public security of the State, will be sanctioned with five to ten years of prison if committed with the aim of sabotage and in time of war to cause a serious disruption of public order or a public calamity. Sabotage will be sanctioned with ten to twenty years of prison if committed with the intent of causing a state of war with the Salvadoran State, and if it resulted in the preparation of its military capacity or of military operations. If the indicated acts are carried out in a period of normalcy, and they directly affect the national military capacity, the punishment will be between one to three years of prison. 
El Salvador, Penal Code, 1997, as amended to 2008, Articles 352–357.
Iraq
Iraq’s Penal Code (1969), taking into account amendments up to 1982, states:
The following persons are punishable by life imprisonment:
(1) Any person who obtains by any means anything that is considered to be secret in respect of the defence of the State with intent to disrupt the defence of the State to the advantage of a[] foreign country or disclose such secret to that foreign country or[] to a person working on its behalf.
(2) Any person who hands over or discloses such secrets to a foreign country or to a person working on its behalf.
The penalty will be death if the offender is a public official or if the offence is committed in time of war or if the foreign country is hostile. 
Iraq, Penal Code, 1969, taking into account amendments up to 1982, § 177.
Islamic Republic of Iran
The Islamic Republic of Iran’s Army Penal and Procedure Code (1939) states:
[T]he following persons are considered as spies and are to be sentenced to capital punishment:
1. Anyone who entered a fort or fortified place or post or any military institution … to gain information and documents for the benefit of the enemy.
2. Anyone who obtains information or documents for the enemy which can be harmful for army operations or for the security of forts or fortified places or posts or military institutions.
3. Anyone who deliberately hides or provides the means for hiding spies …
4. Anyone who, against the interests of the country, gives political or military secrets or keys of the codes to foreigners. 
Islamic Republic of Iran, Army Penal and Procedure Code, 1939, Article 313.
Mexico
Mexico’s Code of Military Justice (1933), as amended in 1996, defines a spy as someone who has penetrated a defended place or troops in the field with the aim of collecting useful information and communicating it to the enemy. 
Mexico, Code of Military Justice, 1933, as amended in 1996, Articles 206–207.
Philippines
A publication on Philippine Military Law (1956) states:
A spy is a person who, without authority and secretly, or under a false pretext, contrives to enter within the lines of an army for the purpose of obtaining material information and communicating it to the enemy; or one who, being by authority within the lines, attempts secretly to accomplish such purpose. 
Claro C. Gloria, Philippine Military Law, Capitol Publishing House, Quezon City, 1956, p. 263.
Switzerland
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
A person who has gathered military information on Swiss territory for a foreign State to the detriment of another foreign State or has organized such service … shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. 
Switzerland, Military Criminal Code, 1927, as amended in 2007, Article 93(1).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states:
Art. 93
1 A person who, on Swiss territory, has gathered military information for a foreign State to the detriment of another foreign State or has organized such a service,
anyone who has recruited someone else for such a service or has encouraged such acts,
shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Article 93(1).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a title on war crimes, states under the title “Felonies or misdemeanours against the State or national defence”:
Art. 274
1 A person who has gathered military information in the interest of a foreign State and to the detriment of Switzerland or has organized such a service,
anyone who has recruited someone else for such a service or has encouraged such acts,
shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 274(1). See also Articles 4(1), 267(1) and 272(1).
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code and, inter alia, defines the term “spy” as:
Any person subject to this chapter who with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy.  
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2630, § 950v(b)(27).
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(27) SPYING.—Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct. 
United States, Military Commissions Act, 2009, § 950t(27).
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Spies
A spy is a person who secretly attempts to obtain information of military importance in enemy controlled territory. Spies operating in civilian clothes are not entitled to the status of Combatants and if captured are not accorded the status of Prisoners of war. Spies in uniform on the other hand do count as combatants and are to be accorded prisoner of war status if captured. 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 38.
No data.
No data.
No data.
No data.
No data.
No data.